45 Kan. 88 | Kan. | 1890
Opinion by
Action for damages for failing to deliver a certain telegraphic message. The facts are as follows:
The plaintiff in error was a telegraph company, doing business between St. Joseph, Missouri, and Sabetha, Kansas. The defendants in error were partners, doing business at the latter place, and engaged in shipping hogs. They had purchased of the farmers in the neighborhood of Sabetha a lot of hogs, which they designed shipping to market, either at St. Joseph or Kansas City. The hogs were to be delivered at Sabetha, by the farmers, on the 12th of January, 1885. Prior to that date the defendants had employed one E. P. Roher, a livestock commission merchant, or broker, at St. Joseph, to send them a dispatch from that point on the 12th, informing them of the condition of the hog market at that place on that day. Roher delivered a message containing the desired information, addressed to the defendants at Sabetha, to the plaintiff company at its office in St. Joseph, in time to have reached the defendants so that they might have shipped their hogs to St. Joseph. But the message was never transmitted, or, at least, never delivered to the defendants, although they called for it at the company’s office at Sabetha four times on that day. Not hearing from Roher, and supposing on that account that the market was not good at that point, the defendants shipped their hogs to Kansas City, where they were sold at an average price of $4.20 per hundred. Subsequently the defendants learned that if they had shipped to St. Joseph on that day they would have received $4.30 per hundred for their hogs, and saved the freight from St. Joseph to Kansas City;
The first error discussed by the plaintiff in error in its brief, is the action of the court in overruling a motion to suppress a deposition. The grounds of the motion are: First, the deposition has not been duly certified as provided by law; second, the witnesses were not sworn according to law; third, the deposition was not taken, sealed up, and authenticated as provided by law.
We regard the second ground stated in the motion for the suppression of the deposition as a mere elaboration of the first, serving to point out the specific reason why the deposition is not properly certified. We will therefore treat these two grounds as constituting but one reason why the deposition ought to have been suppressed. This question involves a construction of our statute on this subject. Paragraph 4454, General Statutes of 1889, reads as follows:
“The officer taking the deposition shall annex thereto a certificate showing the following facts: That the witness was first sworn to testify the truth, the whole truth, and nothing*91 but the truth; that the deposition was reduced to writing by some proper person, naming him; that the deposition was written and subscribed in the presence of the officer certifying thereto; that the deposition was taken at the time and place specified in the notice.”
In Baxter v. Payne, 1 Pin. 504, Judge Miller, delivering the opinion, says:
“The deposition of William Pyncheon was offered in evidence, which was objected to by the defendant, for the reason that the justice does not certify how the oath was administered to the witness. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly; and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible. Before a deposition should be allowed to be read in evidence, every requisite of the statute must have been substantially and fully complied with. This deposition was taken at the instance of the plaintiff, for the reason that the witness resided more than thirty miles from the place of trial, in pursuance of a written agreement between the parties, and in their presence. In the commencement and body of the deposition, it is stated that the witness ‘beingduly sworn doth depose and say as follows The certificate of the justice sets forth that the witness ‘was first sworn in the usual manner of taking depositions.’ The statute requires that the deponent shall be sworn to testify the truth, the whole truth, and nothing but the truth. There was error in overruling the objection to the reading of this deposition.”
“A deposition cannot be read in evidence unless it plainly and satisfactorily appears from the certificate of the justice that all the requirements of the statute have been fully complied with, and no presumption will be indulged in to supply any defect.”
In pointing out what the certificate must show, the court says:
“It must also state, according to §§ 14 and 16 of the same act, that the deponent was sworn to testify the truth, the whole truth, and nothing but the truth. The legislature intended that every part or requisition of the rule should be equally important and binding; consequently the court cannot relax or change it.”
In House v. Elliott, 6 Ohio St. 498, the objection to the deposition was that the certificate annexed to the deposition did not show that the witness was first sworn. The court says: “ This is a compliance with the form prescribed in Swan’s Statutes of 1841, but does not meet the requirement of the code. There must be a certificate annexed to the deposition, by the officer, that the witness was first sworn.” The court in that case held that, where the caption of the deposition showed that the witness was first sworn, the certificate must be held sufficient, as the caption must be considered a part of the certificate. Although nothing is said about it in the brief in this case, attention may be called to the fact that- the deposition does not, either in the certificate or in the caption thereof, in terms, show that the witnesses were first sworn.
In Maine, the statute requires that a deponent, before giving his deposition, should be sworn to “testify the truth, the whole truth, and nothing but the truth, relating to the cause or matter for which the deposition is to be taken; ” and the court, in Brighton v. Walker, 35 Me. 132, held that “A caption, which certifies that the deponent was first sworn according to law, to the deposition by him subscribed, does not show a compliance with the statute requirement. A recital in the caption that the deponent was sworn ‘ to testify the truth, and nothing but the truth,’ is fatally defective. It should appear that the de
In Lund v. Dawes, 41 Vt. 372, the court says: “It is very clear from the statute above cited, and from the decisions in this state, that the certificate of the authority taking the deposition must show that the person making the deposition made oath to it as prescribed by statute.”
“ In accordance with the decision of this court in Brighton v. Walker, 35 Me. 132, (cited above,) as the certificate of the magistrate does not show that the oath required by statute has been administered, the deposition of Parsons must be regarded as having been improperly admitted. It is to be regretted that a verdict should be set aside for an error of the magistrate, which might have been amended at the trial, but the requirements of the statute cannot be disregarded.” (Parsons v. Huff, 38 Me. 137. See also 15 N. H. 371; Bell v. Morrison, 1 Pet. 351; United States v. Smith, 4 Day, 121; 2 Pet. Dig. 41.)
This case was pending in the trial court during several terms after the motion to suppress the deposition was filed. The deposition • might have been withdrawn, with leave of court, and returned to the officer who took the same, and he might have corrected the form of the certificate if the proper form of oath was really administered by him to the witness. Counsel for the defendants in error refer us to but one case upon this question — The State v. Baldwin, 36 Kas. 1. An examination of that case throws no light upon this question. The question there decided is neither the same nor similar to the one presented here.
The third ground contained in the motion for the suppression of the deposition is, that the deposition was not sealed up and authenticated as required by law. There is nothing in the record showing how the deposition was sealed up and authenticated, and therefore we cannot consider this question.
The sixth complaint is, that the defendants, over the objection of the plaintiff, were permitted to prove what the hogs sold for in Kansas City, Missouri, on the 14th of January, 1885. Kansas City, Missouri, is the next nearest hog market to Sabetha after St. Joseph, and the market to which the defendants intended to ship their hogs if they did not ship to St. Joseph, and the market to which they did ship them. The hogs were sold on the market there for the best price they would bring. The admission of this evidence was coupled with evidence showing that on the very day, January 14th, 1885, on which the hogs were sold in Kansas City, they would have brought the price contended for by the defendants, in St. Joseph, Missouri. There can be no question under the evidence, but that if the plaintiff in error had done its duty, and transmitted and delivered the message received by it from
By the Court: It is so ordered.
I am satisfied with all the conclusions stated, except the one which holds it to be prejudicial error not to have suppressed the depositions which were read. The statutory requirement in regard to swearing the witnesses should be substantially followed, and the fact of the swearing should be certified to by the officer taking the deposition. The record in this case not only recites that the witnesses were sworn at the beginning of their depositions, but the officer who took them certifies that the deponents were sworn “to testify the whole truth of their knowledge touching the matter in controversy.” While this is not a strict literal compliance with the statute, the deviation is so slight and immaterial that the oath may be regarded as a substantial compliance with that required in the statute. As a substantial compliance is sufficient, I think the depositions were properly admitted in evidence, and further, that the judgment of the district court should be affirmed. (Welborn v. Swain,, 22 Ind. 194.)